Opinion
No. 41292.
October 5, 1959.
1. Eminent domain — highways — converting conventional highway into a "controlled-access facility" — landowner entitled to compensation for limitation of his access rights.
Where business route of highway, on which land of landowner abutted prior to proposed reconstruction of highway by State Highway Commission, was a conventional, existing highway, and landowner had a special right of access and user in highway, and reconstruction of highway according to plans and specifications of commission would in fact limit and control access to landowner's land, reconstruction of highway would convert highway into a "controlled access facility" within meaning of statute, and landowner was entitled to compensation for limitation of his access rights. Chap. 314 Secs. 2a (a, g), 3, Laws 1956.
2. Highways — eminent domain — damages — right of access and user a valuable property right — abutting landowner entitled to compensation for limitation of his access rights.
Highway reconstruction, which renders abutting landowner's property less accessible to highway, or which makes approach more inconvenient, constitutes the taking of a valuable property right for which landowner is entitled to compensation. Chap. 314 Sec. 3, Laws 1956.
3. Eminent domain — State Highway Commission — power to regulate traffic and entrances into main highways as not including power to limit rights of access and user to existing highway without payment of compensation.
Power, which State Highway Commission has to regulate traffic and entrances into main highways, and which may be exercised by commission in interests of public safety without compensation, does not include power to convert an existing highway into a controlled-access highway without paying compensation to landowner. Chap. 314 Sec. 3, Laws 1956.
Headnotes as approved by Gillespie, J.
APPEAL from the Circuit Court of Forrest County; STANTON A. HALL, Judge.
Simrall, Aultman Pope, Hattiesburg; Matthew Harper, Jr., Asst. Atty. Gen., Jackson, for appellant.
I. The Mississippi State Highway Commission did not seek to condemn or take, nor did it condemn or take in this suit, any access right of the appellee. Berry v. Southern Pine Electric Power Assn., 222 Miss. 260, 76 So.2d 212; Collins v. Mississippi State Highway Comm., 233 Miss. 474, 102 So.2d 678; Harreld v. Mississippi State Highway Comm., 234 Miss. 1, 103 So.2d 852; Jones Beach Boulevard Estate v. Moses, 268 N.Y. 362, 197 N.E. 313, 100 A.L.R. 487; Mississippi State Highway Comm. v. Daniels, 235 Miss. 185, 108 So.2d 854; Muse v. Mississippi State Highway Comm., 233 Miss. 694, 103 So.2d 839; Town of Durant v. Castleberry, 106 Miss. 699, 64 So. 657; Secs. 2751, 8038 (1), Code 1942; 18 Am. Jur., Secs. 114, 115 pp. 740-742.
The evidence submitted by appellee to show that appellant was taking in this suit a compensable abutment and/or access right of the appellee should have been stricken from the record and not allowed to be considered by the jury.
III. The evidence of all of appellee's witnesses on the question of damages should have been stricken from the record and not allowed to be considered by the jury. Mississippi State Highway Comm. v. Brown, 176 Miss. 23, 168 So. 277; Mississippi State Highway Comm. v. Burwell, 206 Miss. 490, 39 So.2d 497; Mississippi State Highway Comm. v. Daniels, supra; Mississippi State Highway Comm. v. Hillman (Miss.), 195 So. 679; Muse v. Mississippi State Highway Comm., supra; 18 Am. Jur., Eminent Domain, Secs. 259, 345, 347, 351.
IV. The verdict of the jury was excessive and should not be allowed to stand. Mississippi State Highway Comm. v. Hillman, supra. E.J. Currie, Sr., E.J. Currie, Jr., Hattiesburg, for appellee.
I. Aside from the question and issue raised by the attorneys for the petitioner and appellant, the Mississippi State Highway Commission, about the existence or not of alleged right of direct access to U.S. Highway 49 North, there was substantial and abundant and competent evidence adduced during the trial to support a verdict in excess of $4,000.00. Warren County v. Harris, 211 Miss. 80, 50 So.2d 918; 18 Am. Jur., Sec. 355 p. 999.
II. The gist of all of the contentions made by the attorneys for the petitioner and appellant, Mississippi State Highway Commission, is that the verdict rendered by the jury was excessive, but such alleged objection was not made the basis of a motion for a new trial. Coccora v. Vicksburg Light Traction Co., 126 Miss. 713, 89 So. 257; Hattiesburg Chero Cola Bottling Co. v. Price, 143 Miss. 14, 108 So. 291; Kelly v. Brown, 32 Miss. 202; Lovett Motor Co. v. Walley, 217 Miss. 384, 64 So.2d 370; Phipps v. Nye, 34 Miss. 330; Robertshaw Trustees v. Columbus G.R. Co., 185 Miss. 717, 188 So. 308; St. Louis S.F.R. Co. v. Bridges, 156 Miss. 206, 125 So. 423; Sansing v. Thomas, 205 Miss. 618, 52 So.2d 478; Standard Coffee Co. v. Carr, 171 Miss. 714, 157 So. 685; Standard Oil Co. v. Franks, 167 Miss. 282, 149 So. 798; Sussman, Wormser Co. v. Sea Food Co., 130 Miss. 632, 94 So. 795; Tendall v. Davis, 129 Miss. 30, 91 So. 701; Walker v. Jones, 44 Miss. 623; Watson v. Holiman, 169 Miss. 585, 153 So. 669; 3 C.J., Sec. 910 pp. 988, 989; 46 C.J. 197, 287, 289.
III. In the case now before the Court the trial jury went upon and viewed the property sought to be condemned and its surroundings, and examined and measured the same.
IV. In view of the facts and circumstances disclosed by the record in this cause we think the trial jury would have been amply justified in disregarding in toto the testimony of the witnesses Turner, Frost and Rayburn upon the ground, among others, that the exactly similar testimony of such witnesses was worthless; but in any event, the trial jury was not required to passively receive and blindly follow such testimony, and they were not "bound down by it." Mississippi State Highway Comm. v. Turnipseed, 236 Miss. 764, 111 So.2d 925.
V. The position assumed by the attorneys for the Mississippi State Highway Commission to the effect that no right of access to the defendant's property was sought to be taken in this action was and is wholly untenable.
VI. The trial court did not commit any reversible error to the prejudice of the appellant in the admission or the exclusion of any testimony or evidence.
VII. Can the Court say with confidence that the verdict is manifestly against all reasonable probability; that manifestly it has not responded to reason upon the evidence produced? Unless the Court can so say, the verdict must stand, for otherwise there would be only a matter of conflict in the evidence, in which case, if the issues have been fairly submitted to the jury on proper instructions, the verdict is irreversible. Faulkner v. Middleton, 186 Miss. 355, 190 So. 910.
The Commission filed in the County Court of Forrest County its petition for the condemnation of .55 of an acre of the Finch land for the purpose of relocating and reconstructing U.S. Highway No. 49, a part of Federal Aid Project No. F-008-2(4) near Hattiesburg, Mississippi. The petition described its powers to relocate, etc., the highway and to condemn the necessary land "including the right to provide limited access facilities where deemed necessary." In paragraph 5 it described the land sought to be condemned without reference in that paragraph to any access rights. It made the Commission's order declaring the necessity for the taking an exhibit to the petition. This order made the plans and specifications for the project a part thereof by reference.
Prior to the taking here involved, the landowner owned about 12 acres of land lying along the northerly right of way of U.S. Highway 49, fronting about 612 feet on the business route which at that point was a one-way lane going north. This lane converged with the main north and south lanes of the highway at or near the southwest corner of Finch's property. There was a county road running north and south along the western edge of the Finch land which intersected U.S. Highway No. 49 at or near the southwest corner thereof. Up until a short time before the petition was filed, Finch had a service station on his land with two access driveways into the said business route of U.S. Highway No. 49. It is not shown when or how the Commission acquired the right of way for the highway existing at the time the petition was filed, but the Commission does not contend that it had theretofore acquired any of Finch's access rights. It follows that at the time the present petition was filed, U.S. Highway No. 49 was an existing highway and Finch's right of access was neither controlled nor limited in any way except that the Commission had the right to reasonably regulate entrances to the highway.
The petition sought to condemn .55 acre along the southerly edge of Finch's land, varying in width from about 50 feet on the southeast corner to 12 feet at the southwest corner. According to the proof, including the plans and specifications for the new construction, the land belonging to Finch sought to be condemned would be included in a service or frontage road which would be a two-way drive separated from the said business route of U.S. Highway No. 49 by a neutral strip. This service road is to be connected with the business route of U.S. Highway No. 49 at an interchange at or near the southwest corner of the Finch property where the service road and all lanes of U.S. Highway No. 49 are connected. The service road on which Finch's property will front when the construction is completed will also connect with the business route of U.S. Highway No. 49 about 1200 feet southeast of the interchange already mentioned. It was shown by the testimony that traffic moving north on the business route would have to turn into the service road at the southeast interchange, from which point a service station on the Finch property would not be observable, in order to drive directly from the service road into the Finch property. The only other way for a motorist going north on the business route to get into the Finch property would be to use the interchange near the southwest corner of the Finch property and drive back to the Finch property. In short, the plans and specifications for the new construction show that the existing highway is to be converted into a controlled-access facility. Before the taking, Finch's property abutted the main travelled northbound lane of the Hattiesburg business route with full rights of direct access thereto, subject only to the Commission's right to reasonable regulations. After the new construction, Finch's property will abut a service or frontage road connected with the main highway only at the interchanges as stated.
The Commission contends (1) that the Commission did not condemn any of Finch's access rights; (2) that Finch should not have been allowed to show that any of his access rights were being taken, and the evidence in that regard should have been stricken; (3) that since all of Finch's evidence on damages was based on the erroneous premise that compensable access rights were being taken, all the evidence offered by Finch should have been stricken, and (4) the verdict was excessive because all of the testimony offered by Finch was incompetent for the reason stated in (3). It will be noted that all these separate contentions merge into one basic question: Is the Commission taking any compensable access rights appurtenant to Finch's property?
The question involved has two points of inquiry: (1) Do the plans and specifications for the reconstruction of U.S. Highway No. 49 convert the highway into a controlled or limited access facility? (2) If so, is the landowner entitled to compensation for such limitation of his access rights?
As already noted, the business route of U.S. Highway No. 49 on which Finch's property abutted prior to the proposed reconstruction was a conventional, existing highway. Finch had a special right of access and user in the highway. The act under which the Commission proceeded to condemn the land in question defines a controlled-access facility. Section 2(a) of Chapter 314, Laws of 1956, is as follows:
"(a) `Controlled-access Facility' — A highway or street especially designed for through traffic, and over, from, or to which owners or occupants of abutting land or other persons have no right or easement or only a controlled right or easement of access, light, air, or view by reason of the fact that their property abuts upon such controlled-access facility or for any other reason. Such highways or streets may be expressways or freeways open to use by all customary forms of street and highway traffic; or they may be parkways from which trucks, busses, and other commercial vehicles shall be excluded."
Subsection (g) of the same Act is as follows:
"(g) `Service Road' or `Local Service Road' — A highway, road or street which is auxiliary to and located on the side of another highway, road or street for service to abutting property and adjacent areas and for control of access to such other highway, road or street."
(Hn 1) The facts as herein stated show without any question whatever that the reconstruction of the highway according to the plans and specifications of the Commission will in fact limit and control access to the Finch property. And without regard to the decisional law on the subject, the proposed construction will result in a controlled-access facility as defined by the quoted statute. The manifest purpose of the Commission in condemning the land in question was to convert the existing highway into a controlled-access facility.
The second point of inquiry is also resolved against the Commission by the statute under which it brought the proceeding. Section 3, Chapter 314, Laws of 1956, provides in part as follows:
"Provided, however, no existing public street or highway shall be converted into a controlled-access facility except with the consent of the owners of lands abutting said freeway or with the purchase or condemnation of the acess rights of said abutting land owners."
(Hn 2) Our cases hold that reconstruction of a highway which renders the abutting landowners' property less accessible to the highway, or which makes the approach more inconvenient, constitutes the taking of a valuable property right which is compensable. Carney v. Mississippi State Highway Commission, 103 So.2d 413, and cases therein cited; Muse v. Mississippi State Highway Commission, 103 So.2d 839, and cases therein cited. In the latter case, the instructions granted Muse told the jury, in effect, that the right of direct access to the existing highway was a valuable right which was being taken by the Commission (by the construction of the service road similar to the one presently involved) and that it was the duty of the jury to award Muse compensation for the taking of the direct right of access.
(Hn 3) The power the Commission has to regulate traffic and entrances into main highways, which may be exercised in the interests of public safety without compensation, does not include the power to convert an existing highway into a controlled-access highway.
Affirmed.
Roberds, P.J., and Hall, Holmes and Ethridge, JJ., concur.